Coverage Pointers - Volume XI, No. 1

Dear Coverage Pointers Subscribers:

 It's summertime and the living is lovely.

 Remember to visit our interactive site at the New York Insurance Group on LinkedIn: http://www.linkedin.com/groups?gid=1777061 .

 There are some very interesting decisions in the first "summer recess" issue.  The appellate courts in the state take a long summer snooze between Independence Day and Labor Day.  Tradition tells us that while there will be cases upon which to report, the volume of reported decision will be significantly reduced until the summer is almost over.

 Welcome to the first issue of our eleventh volume of Coverage Pointers.  We start are second decade of service, committed to our goal of offering up every New York appellate decision relating to insurance coverage in an easily consumable style.  For our new subscriber, know that each issue is attached to our cover letter, bringing you some of the highlights of the newsletter which accompanies it, sprinkled with humor, history, announcement about continuing education opportunities, training programs and the like. 

 We would be happy to provide claims training to your professional staff, at our expense.  Some suggested topics include:

 Here are a few suggested topics.  Let us know how we can help:

 

      1. Primary and Excess Insurance - Rights & Responsibilities
      2. SUM Claims Handling
      3. Preventing Bad Faith Claims - First Party Cases
      4. Preventing Bad Faith Claims - Liability Cases
      5. New Rules Regarding Notice, Developing Proof of Prejudice and a Strategic to Avoiding Direct Actions
      6. The Cooperation Clause - How to Handle
      7. NY Disclaimer Letter - Nuts & Bolts: How to Create and Write and Send a Disclaimer Letter, and How Not To. (The Reservation of Right Letter Myth)
      8. No- Fault Arbitrations and Appeals: Mock Arbitrations, Preserving the Record, Taking an Appeal 
      9. No Fault Regs - Knowledge is Power
      10. An Auto Liability Policy Primer
      11. A CGL Policy Primer
      12. A Homeowners Liability Policy Primer
      13. EUO's Under First Party Policies
      14. How to Resolve Coverage Disputes:  DJ Actions, Insurance Law Section 3420 Direct Actions (Choice, Strategy and Timing)
      15. Insured Selected Counsel: When is it Necessary and How to Avoid it? 
      16. Mediation and the Role of the Mediator
      17. ADR and How to Get to "Yes".
      18. The Internet as a Tool for the Claims Representative
      19. Construction Cases - The Interplay Between Indemnity Agreements and Insurance Policies
      20. Other Insurance, Additional Insureds and Priority of Coverage  

 From Audrey Seeley, the Queen of No Fault

Initially, thank you to all who have e-mailed, written, and called to congratulate me on my partnership at Hurwitz & Fine, PC.  It was great to hear from so many people across the country.

 

Now, back to business.  There is an interesting trend in Buffalo no-fault arbitration with regard in particular to chiropractic IMEs.  The arbitrators are reviewing chiropractic IME reports and if it states anything like endpoint of improvement or lack of improvement with a showing of positive objective findings then the conclusion is that the report states maximum medical improvement.  We all know that under Hobby v. CNA Ins., that maximum medical improvement or MMI is not a valid basis for denying no-fault benefits on lack of medical necessity.  Insurers need to aware of this trend in Buffalo and ensure that they review the reports a bit closely.  While it is discouraging that IME reports have to parrot the regulatory language of lack of medical necessity it appears that the words lack of medical necessity or their substance must be in the report.

 

Finally, the National Business Institute (NBI) will be conducting a pure no-fault seminar again this year in not only Buffalo but also in Syracuse.  The American Arbitration Association will be participating and Arbitrators McCorry and Theiss are on the agenda to attend.  I will be speaking at the Buffalo location.  The Buffalo seminar is scheduled for Wednesday, November 18, 2009 from 9:00am to 4:30pm.  The Syracuse seminar is scheduled for Thursday, November 19, 2009 from 9:00am to 4:30pm.  If you are interested in attending and would like more information please e-mail me.

 

Audrey

[email protected]

 

Message from Steve Peiper, the Purveyor of Property and Potpourri:

Thanks again to those of you who put up with me yesterday morning. It is always a pleasure to discuss those tricky issues that we all see, and then work together to develop creative solutions aimed at resolving them. 

 

Times are tough this week with no first party cases to speak of. However, to ensure I don't go quietly, please take a look at our potpourri offering. Indian Law fought the Labor Law, and the Labor Law won.   That's all for now and best wishes until next issue.

 

Steve

[email protected]

 

One Hundred Years Ago Today, High Speed Auto Races Led to Fatalities: 

New York Times

July 10, 1909

TWO KILLED IN AUTO RACE

Thrown from Their Car When It Went

Through a Fence,

 

MONTREAL, Canada:  J.C. Batchelder of Newport, Vt., .and J. Twohey of Montreal, was killed at the second annual races of the Canadian Automobile Club at the Blue Bonnets truck this afternoon.

 

Batchelder was driving a 60 horsepower car in the 10-mile open race for stock touring cars, and Twohey was his mechanic. On the eighth mile, rounding into the back stretch, Batchelder pulled out to pass Burman, another racer. The Batchelder car was seen to dash into the fence, fly over the embankment and come to a stop forty yards beyond.

 

Entry was refused last night to the car which Batchelder drove, but today when its owner secured the services of Twohey, who was a science graduate of McGill, it was allowed to compete.

Editor's Note:  Other reports of this tragic accident described the speed of the vehicles as "almost" a mile a minute (an almost breathtaking 60 mph).

 

A Century Ago, Suffrage in the Spotlight:

 

Logansport Indiana Daily Reporter

July 10, 1909

Page 4

 

WOMEN NOT FIT TO BE A VOTER

CANNOT DO THE WORK OF HER

MALE EQUAL, SAYS BISHOP.

 

Admits that Woman is Man's Equal

Mentally, but that She Has Not

His Logic and is Moved by Impulses

 

"A woman is no more qualified to be a voter than a man to be a wet nurse." Such is the opinion of Bishop William Crosswell Doane, known to his admirers as William of Albany, and to the public at large as one of the most notable preachers of the Episcopal Church in America. It was Bishop Doane who ruffled the feathers of the suffragists the other day by comparing them to howling dervishes, it was apropos to this criticism and some others equally caustic made to the graduates of St. Agnes' school at Albany that the bishop was asked for an explanation

 

Rises to the Challenge

His combative spirit rose to the challenge, and forthwith there sprang to his lips the sentence: "A woman is no more qualified to be a voter than a man is to be a wet nurse." "To speak of voting as a right is ridiculous;" the bishop, continued. "The ballot privilege is conferred by the state on those It considers qualified to exercise, it.  The privilege of voting entails that of being voted for.  It means, therefore, potentially women congressmen, women senators, a women president."

 "And why not?" was asked. "Women can not do man's work," replied the bishop earnestly. "There is not in my opinion any menial inequality between the sexes - women are just as bright as men.  But, they are less logical, more moved by impulses and instincts.

 Editor's Note:  In a June 8, 1909 New York Times article covering the same commencement speech, Bishop Doane, the headline screamed:

 

"NEW WOMEN A FREAK," Says Bishop Doane.

"One Who Strive for Men's Work is a Horrible Misshapen Monster"

 

For those familiar with Albany, Bishop Doane is credited with the construction of the Cathedral of All Saints, located on South Swan Street in the Capital City.

 In this week's issue:

 

KOHANE'S COVERAGE CORNER

Dan D. Kohane

[email protected]

  • Delay in Denying Coverage for Four Months is Fatal to Reliance on Policy Exclusion
  • Notice Given by Insured's Claims Administrator to Carrier Providing Additional Insured Status Was Sufficient to Compel Response; Seven Month Delay by That Carrier in Denying Coverage Untimely
  • Workmanship Exclusions Lead to a Denial of Coverage
  • Split Court Finds SUM Arbitrator Not Necessarily Bound by Decision of No Fault Arbitrator in Case Involving Same Parties and Same Issues
  •  As Is the Norm, Insurance Agent Free from Liability
  • Allegations That Insured's Work Led to Owner's Liability Leads to AI Status for Owner and a Defense 

MARGO'S MUSINGS ON SERIOUS INJURY UNDER NEW YORK NO FAULT

Margo M. Lagueras

[email protected]

  • Affirmations That Injuries Are Permanent, Significant and Causally Related Raise a Triable Issue of Fact
  • Summary Judgment Is Defeated By the Submission of Medical Records Quantifying and Causally Relating the Injury
  • Conclusions in Affirmed Medical Reports Which Reply on Unsworn Reports Are Insufficient to Raise an Issue of Fact
  • Trial Court's Consideration of Injury Not Alleged in the Bill of Particulars Is Ruled Error
  • Reliance on Medical Reports That Note the Existence of Significant Range-of-Motion Limitations Spells Doom
  • Defendants Fail to Meet Their Prima Facie Burden When Their Experts Fail to Address Every Allegation in the Plaintiff's Bill of Particulars 

AUDREY'S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

Arbitration

  • IME Chiropractor's "Somewhat Sketchy Opinion" Prevails
  • Talk About Bad Luck - Two Accidents on Same Day, Terminated from Job, and No Lost Wages
Litigation
  • Out-of-State Oath Rule Strikes Again

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper

[email protected]

  • Labor Law Protections Apply to Claims between Native Americans on the Nation's Sovereign Land 

EARL'S PEARLS

Earl K. Cantwell, II

[email protected]

Just Say "NO" to Facebook

 

All for now.  It is cocktail hour somewhere, and your editor is going to find out just where that might be.

 

Dan 

Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of
New York
NEWSLETTER EDITOR
Dan D. Kohane
[email protected]

INSURANCE COVERAGE TEAM
Dan D. Kohane, Team Leader
[email protected]
Michael F. Perley
Katherine A. Fijal
Audrey A. Seeley
Steven E. Peiper
Margo M. Lagueras

FIRE, FIRST-PARTY AND SUBROGATION TEAM
Andrea Schillaci, Team Leader
[email protected]
Jody E. Briandi
Steven E. Peiper

NO-FAULT/UM/SUM TEAM
Audrey A. Seeley, Team Leader

[email protected]
Tasha Dandridge-Richburg
Margo M. Lagueras

APPELLATE TEAM
Jody E. Briandi, Team Leader

[email protected]
Scott M. Duquin

Index to Special Columns

Kohane’s Coverage Corner
Margo’s Musings on “Serious Injury
 Audrey’s Angles on No Fault
Peiper on Property and Potpourri
Earl’s Pearls
Across Borders

KOHANE’S COVERAGE CORNER

Dan D. Kohane
[email protected]

7/7/09              State Insurance Fund v. American Hardware Mutual Insurance Company
Appellate Division, Second Department
Delay in Denying Coverage for Four Months is Fatal to Reliance on Policy Exclusion
In the underlying lawsuit, an employee of Word of Hitches (“Hitches”) was seeking to recover damages he sustained when a container exploded while he was filling it with kerosene.  The defendants he sued started a third-party action against Hitches.  The case settled for $1,475,000 of which the State Insurance Fund (SIF), employer’s liability carrier for Hitches, paid $750,000 in “new money” and waived a workers’ compensation lien of $225,000.
Later, SIF commenced this action seeking a judgment declaring that the two carriers, a CGL carrier and a Garage Liability carrier are obligated to pay their proportionate share of the settlement and defense costs incurred in the underlying action.   Those two carriers had originally defended Hitches but four months later disclaimed, claiming that both policies excluded claims for bodily injury to an employee arising out of and in the course of employment.
The Appellate Division found that the four months those two carriers waited to disclaim was simply too long and under Insurance Law § 3420(d), the waived their right to rely on a policy exclusion.  A lack of prejudice on the part of Hitches does not change that outcome.
The garage carrier claimed that the lateness of the disclaimer was of no consequence because the injured were out of the grant of coverage – which the accident did not arise out of garage operations. The court found that the accident was a result of garage operations.
The next question to be answered was the quantum of contribution.  Both policies had limits of $300,000 per accident.  However, the garage policy provided that all of the defendants' policies were mutually exclusive in that if more than one policy applied to the same accident, the maximum limit of liability under all the policies would not exceed the highest applicable limit under one policy. Thus, the maximum amount the defendants were required to contribute to the settlement was $300,000.
Editor’s Note:  Like it or not, the determination with respect to the disclaimer was appropriate under New York law.  An unexcused delay in disclaiming for four months leads to the loss of the right to rely on policy exclusions and conditions.  That delay would not have been fatal if the loss fell outside the grant of coverage, e.g., if the accident did not arise out of “garage operations,” as coverage cannot be created by the mere passage of time.
7/7/09              Industry City Management v. Atlantic Mutual Insurance Company
Appellate Division, First Department
Notice Given by Insured’s Claims Administrator to Carrier Providing Additional Insured Status Was Sufficient to Compel Response; Seven Month Delay by That Carrier in Denying Coverage Untimely

Industry City Management (Industry) paid $250,000 for their portion of the settlement in an underlying personal injury action and sued to recover that amount from Atlantic.  It argued that a March 2005 letter to Atlantic, written on Industry's behalf by its own insurer's claims administrator, seeking coverage for Industry as an additional insured, constituted timely notice to the insurer and as such required a timely disclaimer from the insurer. The disclaimer of coverage, based on Industry's allegedly untimely notice, was not issued until seven months later, and was untimely and therefore ineffective.

7/2/09              J. Lucarelli & Sons, Inc. v. Mountain Valley Indem. Co.
Appellate Division, Third Department
Workmanship Exclusions Lead to a Denial of Coverage

Lucarelli was an excavation contractor.  Homeowners sued Camelot, the builder of single-family homes claiming that Camelot breached the housing merchant warranty by constructing their homes at an insufficient elevation in relation to the seasonal high groundwater elevation at their plots, resulting in wet basements, mold and fungus, and other damages related to dampness. They sought damages for lost property values, moving expenses, and the cost of tests and inspections. Camelot commenced third-party actions against Lucarelli and others seeking contribution and indemnification based on theories of negligence, breach of contract, and breach of warranty. The engineer commenced a "fourth-party action" against plaintiff seeking indemnification and contribution for negligence. Mountain Valley disclaimed coverage upon receiving notice of the third-party action. It did not disclaim coverage of the fourth-party action, but did not undertake plaintiff's defense.
The policy excluded damage to "[t]hat particular part of real property on which you . . . are performing operations, if the 'property damage' arises out of those operations; or . . . [t]hat particular part of any property that must be restored, repaired or replaced because 'your work' was incorrectly performed on it." The policy defines "your work," in pertinent part, as "[w]ork or operations performed by you or on your behalf," including "[w]arranties or representations made at any time with respect to the fitness, quality, durability, performance or use of 'your work.'"
The causes of action for breach of contract and breach of warranty in the third and fourth-party complaints in the underlying actions arise out of excavation work allegedly performed by plaintiff in connection with the building of the homes and seek damages for plaintiff's faulty workmanship; they therefore fall within the policy exclusion. The "'purpose of a commercial general liability policy . . . is to provide coverage for tort liability for physical damage to others and not for contractual liability of the insured for economic loss because the product . . . is not what the damaged [party] bargained for'"
Plaintiff asserts that defendant must nonetheless provide it with a defense because the complaints include tort causes of action for negligence in addition to the contractual claims.  However, these all arise out of faulty workmanship. Commercial general liability policies like the one involved here were "never intended to provide indemnification to contractors from claims that their work product was defective".
The failure to deny coverage timely does not create coverage where none exists.  Moreover, the duty to disclaim promptly only applies to bodily injury and wrongful death cases.
7/2/09              Falzone v. New York Central Mutual Fire Ins. Co.
Appellate Division, Fourth Department
Split Court Finds SUM Arbitrator Not Necessarily Bound by Decision of No Fault Arbitrator in Case Involving Same Parties and Same Issues

Falzone claimed injury in a car accident.  She contested New York Central’s (“Central”) denial of her No Fault benefits and won, the arbitrator awarding her in excess of $4,000.  Falzone also sought supplemental uninsured motorist (SUM) benefits and, following a second hearing before a different arbitrator, the arbitrator denied her request for such benefits on the ground that her injuries were not caused by the accident.  Falzone moved, pursuant to Article 75, to vacate or modify the SUM arbitration award contending Central could no longer contest causation based on the arbitrator’s no fault award.  Central sought to enforce it.  A three judge majority in the Fourth Department held that Article 7511 does not specify “inconsistence of award” as a ground for vacating or modifying a second award.  The SUM arbitrator had the power to consider the legal and factual issues.
Two dissenting justices argued that the SUM arbitrator exceeded his power when he chose to disregard the preclusive effect of the first decision.
Editor’s Note:  This case is ripe for Court of Appeals review.

6/30/09            Verbert v. Garcia
Appellate Division, Second Department
As Is the Norm, Insurance Agent Free from Liability

Absent a specific request for coverage not already in a client's policy or the existence of a special relationship with the client, an insurance agent or broker has no continuing duty to advise, guide, or direct a client to obtain additional coverage.  Here, there was no such proof of a specific request for coverage and no special relationship which justifies a finding of liability against the agent.

6/30/09            New York City Housing Authority v. Rutgers Casualty Insurance Company
Appellate Division, First Department
Allegations That Insured’s Work Led to Owner’s Liability Leads to AI Status for Owner and a Defense
The NYCHA qualified as an additional insured under the policy defendant issued to NYCHA's contractor.  It is entitled to a defense from the contractor’s carrier in the underlying action where it is alleged that the plaintiff fell on construction debris that was negligently placed and allowed to remain at the exterior stairwell at the entrance of a building. Since the allegations of the underlying complaint suggest a reasonable possibility of coverage, defendant is obligated to defend NYCHA in that action

MARGO’S MUSINGS ON SERIOUS INJURY UNDER NEW YORK NO FAULT

Margo M. Lagueras
[email protected]

7/07/09            Wagenstein v. Haoli
Appellate Division, Second Department
Affirmations That Injuries Are Permanent, Significant and Causally Related Raise a Triable Issue of Fact
The denial of defendants’ motion is affirmed where the plaintiff’s treating physicians and treating orthopedic surgeon submitted affirmations establishing, based on contemporaneous and recent examinations, and review of MRI films and reports, that the plaintiff’s ranges-of motion of her cervical spine and right shoulder were permanently and significantly restricted and that these limitations were caused by the subject accident.

7/02/09            Frazier v. Keller
Appellate Division, Fourth Department
Summary Judgment Is Defeated By the Submission of Medical Records Quantifying and Causally Relating the Injury
The plaintiff sustained injuries from two accidents: one in 1999 and the other in 2000.  This suit involved the 1999 accident.  The plaintiff submitted medical records which both quantified and causally related her cervical range-of-motions limitations at least in part to the 1999 accident.  This is sufficient to reinstate the complaint, at least with respect to her claim of permanent consequential limitation of use and significant limitation of use.

6/30/09            Vickers v. Francis
Appellate Division, Second Department
Conclusions in Affirmed Medical Reports Which Reply on Unsworn Reports Are Insufficient to Raise an Issue of Fact
Most of the plaintiff’s evidence was unsworn and therefore not in admissible form.  The affirmed report she did submit failed to raise a triable issue of fact because it contained no objective medical evidence of a significant limitation in the plaintiff’s spine that was contemporaneous with the accident.  In addition, the affirmed report relied on the unsworn reports and was rendered speculative because it made no mention of a subsequent accident in which the plaintiff injured her neck and back.

6/30/09            Yun v. Barber
Appellate Division, Second Department
Trial Court’s Consideration of Injury Not Alleged in the Bill of Particulars Is Ruled Error
Su Gil Yun submitted the affidavit of his treating chiropractor which was based on both contemporaneous and recent examinations, as well as review of an MRI which revealed several herniated and bulging discs.  The chiropractor concluded that the injuries to Su Gil Yun’s cervical and lumbar spines and the range-of motion limitations were permanent and causally related to the accident.  This was sufficient to reinstate his complaint.

The other plaintiff, however, only alleged injuries to her lumbar spine and left knew but not to her cervical spine in her bill of particulars.  Her experts’ conclusions that her lumbar spine and knee injuries were caused by the accident were rendered speculative because they did not address a prior accident in which she was involved.  Nor should their findings regarding her cervical spine have been considered because she never alleged that injury in her bills of particulars.  She therefore failed to raise a triable issue of fact in opposition to the defendants’ motion.

6/30/09            Held v. Heideman
Appellate Division, Second Department
Reliance on Medical Reports That Note the Existence of Significant Range-of-Motion Limitations Spells Doom
This should be obvious but we continue to see cases where, in support of their motion for summary judgment asserting lack of a serious injury, the defendants rely on affirmed medical reports, in this case from their examining orthopedic surgeon, in which the expert specifically notes the existence of some significant range-of motion limitation.  The result is no surprise and is generally accompanied by that often repeated decisional language: “it is unnecessary to consider the sufficiency of the plaintiff’s opposition papers.”

6/30/09            McFadden v. Barry
Appellate Division, Second Department
Defendants Fail to Meet Their Prima Facie Burden When Their Experts Fail to Address Every Allegation in the Plaintiff’s Bill of Particulars
In her bill of particulars, the plaintiff alleged injuries to her lumbar spine.  She was examined by the defendants’ neurologist and orthopedist, and neither one of them made any reference to the plaintiff’s lumbar range-of motion.  Defendants’ failure to meet their prima facie burden means, once again, it is unnecessary for the court to even look at the plaintiff’s opposing papers.

 

AUDREY’S ANGLES ON NO-FAULT
Audrey Seeley
[email protected]

Arbitration
7/6/09              Misiak Chiropractic v. Auto One Ins. Co.
Arbitrator Thomas J. McCorry (Erie County)
IME Chiropractor’s “Somewhat Sketchy Opinion” Prevails
The eligible injured person (“EIP”) was involved in a November 20, 2004, motor vehicle accident and came under the chiropractic care of Mr. Misiak.  The insurer had the EIP examined by Mr. Geoffrey Gerow.  Mr. Gerow’s opinion was that the EIP was not much improved from his first examination and that no further chiropractic care was necessary or related to the accident.  The assigned arbitrator found that while Mr. Gerow’s opinion was “somewhat sketchy” the insurer met its burden of demonstrating lack of medical necessity.  Further, the applicant failed to rebut this as its submitted treating chiropractor’s reports consisted of check off boxes and brief conclusions.  The treating chiropractor’s reports failed to have any narrative to counter Mr. Gerow’s opinion.

6/29/09            Applicant v. Progressive Ins. Co.
Arbitrator Thomas J. McCorry (Erie County)
Talk About Bad Luck – Two Accidents on Same Day, Terminated from Job, and No Lost Wages.
On October 9, 2008, the 19 year old Applicant was involved in a minor accident while on her way to work.  She worked as a certified nursing assistant trainee at a nursing home.  While at work that day, she had a work related injury in the shower area.  Not only was the Applicant injured but the elderly patient she was supervising was injured in an unexplained manner.  Then, as the Applicant was riding home with a co-worker, she was involved in a second motor vehicle accident with injuries.

The Applicant sought lost wages as a result of the injuries sustained in the second accident.  However, the employer advised the insurer that the Applicant was terminated on October 10, 2008 because of performance issues unrelated to the motor vehicle accident.  Accordingly, the insurer denied the lost wage claim as the lost wages were not related to the Applicant being unable to perform her job due to injuries from a motor vehicle accident.

The assigned Arbitrator found in favor of the insurer after hearing testimony from the employer that the Applicant’s termination was not a result of injuries from the accident.

Litigation
6/23/09            Crossbridge Diagnostic Radiology a/a/o Mohamed Ali Lmimouni v. Encompass Ins.
Appellate Term, Second Department
Out of State Oath Rule Strikes Again.
The plaintiff’s summary judgment motion was affirmed.  The insurer’s opposition to the summary judgment motion was that the policy limits were exhausted.  The insurer submitted an affidavit from its claims representative in Massachusetts, with the affidavit being notarized by a Massachusetts notary.  The insurer’s counsel also submitted various documents that indicated what the policy limits were and the amount paid out under the policy.

The insurer’s claims representative’s affidavit was found to not be in conformance with CPLR 2309(c) and therefore not in admissible form.  We are all familiar with this CPLR provision requiring an out of state affidavit to be accompanied by a certificate or certificates that would be required to have deed acknowledged.  The question has always been what is this and how do you obtain it?  In the past we performed a little research on the issue and determined that each county clerk has a certificate that can be attached to the affidavit.  The certificate essentially indicates that the notary public who notarized the affidavit is a qualified notary public within that county and has a current commission.  Thus, plaintiff’s summary judgment motion was properly granted.

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper
[email protected]

07/09/09          Alexander v. Hart
Appellate Division, Third Department
Labor Law Protections Apply to Claims between Native Americans on the Nation’s Sovereign Land

In this matter, Alexander sustained injury in the course of his employment when he fell while performing work on defendant’s HVAC system.  The HVAC system was located at defendant’s fitness center which was on the sovereign land of the St. Regis Mohawk Reservation.  Moreover, the fitness center was wholly owned and operated by members of the Mohawk nation.

Plaintiff moved for summary judgment on liability, and defendant then cross-moved for summary judgment on several grounds.  The first being that Labor Law § 240(1) and Labor Law § 241(6) did not apply to claims that arose on sovereign territory.  However, where the defendant was unable to establish the existence of any tribal law which would be applicable to the circumstance, the Third Department ruled that New York civil law was not superseded. 

Secondly, defendant argued that he was not the owner of the premises where the incident involving Mr. Alexander occurred.  Defendant’s argument was that the land was owned by the United States government, and that it was held in trust for the St. Regis Mohawk nation.  The Third Department was not persuaded by that argument as well.  In denying this aspect of defendant’s motion, the court stated that the term “owner” as used in the Labor Law encompasses a person “who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit.”  Clearly, defendant had contracted to have work performed for his benefit.

Lastly, defendant argued the more conventional position that plaintiff was not engaged in an enumerated activity at the time he sustained injury.  Specifically, defendant argued that the plaintiff was performing maintenance, which is not a covered activity.  The Third Department ruled that plaintiff was actually engaged in repairing a nonfunctional HVAC unit.  The scope of the tasks plaintiff performed convinced the Court that his activities were more substantial than that of simple maintenance. 

As a result, defendant’s cross-motion for summary judgment was dismissed, and plaintiff’s motion granted on the issue of liability.

EARL’S PEARLS
Earl K. Cantwell, II
[email protected]

JUST SAY “NO” TO FACEBOOK

Enterprising lawyers are trying to find out information about claimants and potential witnesses by accessing personal information websites.  Defense lawyers salivate at the thought of finding a photo of an allegedly injured plaintiff skiing down a Black Diamond slope.  Plaintiff lawyers have dreams of finding confessions by teenage drivers on-line apologizing for the accident they caused.  Some of these websites are open to the public and are within the public domain, but others such as Facebook and MySpace are invitation only and this raises ethical issues for counsel.

The Philadelphia Bar Association Professional Guidance Committee issued an opinion in March, 2009 essentially stating that a lawyer who wants to see what a potential witness says to personal contacts on his or her Facebook or MySpace page has really one good option: request access.  Alternative approaches, such as secretly using an employee or a third party investigator to “friend” a Facebook user, are unethical because they are deceptive. 

Facebook and MySpace profiles are found to be different from public access sites, and also different than public areas where one can conduct surveillance and take photographs and videography.  The Professional Guidance Committee cited Rule 8.4 which in part defines misconduct as engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation.”  The Committee opined that falsely proposing to “friend” someone on these websites would violate this rule because the planned communication by the third party with the witness was deceptive.  It omits the highly material fact that the third party who asks to be allowed access is doing so only because he or she is intent on obtaining information and sharing it with a lawyer to use in a lawsuit.  This was true even though it appeared that the individual freely allowed access to her Facebook and MySpace pages - that did not “excuse” the deceit.

The attorney seeking the ethical opinion suggested that the proposed conduct was similar to the common (and ethical) practice of videotaping public conduct of a plaintiff in a personal injury case.  The Committee disagreed.  In the video situation, the individual is simply followed and filmed as he or she presents themselves to the public.  The person taking the surveillance does not have to enter a private area to make the video.  If they did, similar issues would be confronted, as for example, if the surveillance individual took a hidden camera and gained access to the inside of a house to make a video by presenting himself as a utility worker or meter reader. 

This opinion was advisory only and not necessarily binding on the Disciplinary Board of the Supreme Court of Pennsylvania.  It certainly also would not be binding on a court if an attorney attempted to use such information at trial. 

It seems that information publicly available on websites can be reviewed and utilized since the individual has put that information out in the public domain about themselves.  However, counsel and carriers should be careful in trying to access and obtain information from invitation only sites since that may raise issues of ethics, violation of privacy, and engaging in misleading or deceptive conduct. 

ACROSS BORDERS

Please visit the Hot Cases Section of the Federation of Defense & Corporate Counsel website: www.thefederation.org

7/01/09            Veneco, Inc. v. Gulf Underwriters Insurance Company
California Court of Appeals
Liability Insurance: Court Enforces Reporting Requirement for Pollution Coverage

Gulf insured Venoco under a liability policy containing a pollution exclusion, but with a “buy back” provision allowing pollution coverage subject to certain requirements, including that Gulf be notified within 60 days of discovery of an accident. Venoco brought a coverage action after Gulf refused to defend Venoco in a lawsuit brought by former students and employees of a high school alleging bodily injury as a result of exposure to toxic chemicals. The trial court ruled in Gulf’s favor on the parties’ cross-motions for summary judgment, and the appellate court affirmed. The court rejected Venoco’s argument that the 60-day reporting requirement was not conspicuous, plain and clear, and held that Gulf did not have to prove it suffered prejudice to enforce the time limit. Imposing a prejudice requirement would expand the reporting time limit, thereby altering the insurance contract. Nor was the reporting requirement against public policy. Also, the claim did not satisfy the other requirements of the “buy back” provision, including that the claim result from a discrete and identifiable accident. Finally, the court held that the claimants’ cause of action alleging Venoco’s failure to warn the public about toxic chemical discharges was also subject to the pollution exclusion, and that Gulf had no duty to defend Venoco against the claimants’ purported “false or groundless claims” because the claims were not covered by the policy.
Submitted by: Bruce D. Celebrezze, Esq. & Jamison R. Narbaitz, Esq. of Sedgwick, Detert, Moran & Arnold LLP

6/25/09            State Farm General Ins. Co. v. Mintarsih
California Court of Appeals
Supplementary Payments: No Obligation to Pay Attorneys’ Fees Awarded for Causes of Action That Are Not Potentially Covered

Pursuant to its “implied in law” obligation under California law, and subject to a reservation of rights, State Farm defended its insureds under a homeowners policy and a personal liability umbrella policy against a “mixed” action (containing both potentially covered claims and claims that are not even potentially covered). Attorneys’ fees were awarded to the claimant based on a cause of action that was not potentially covered under the policy. The claimant, as judgment creditor, sought to recover the fee award under the State Farm policy’s “supplementary payments” provision. Rejecting the holding from a year 2000 decision from another division of the same court, the appellate court concluded that the obligation to pay costs awarded against an insured arises only if there is a “contractual” duty to defend, and therefore, an insurer does not have to pay costs arising from claims that are not potentially covered under its policy. The court further held that Cal. Ins. Code § 533 – which provides that an insurer has no duty to indemnify a loss caused by the insured’s willful acts – precluded recovery of compensatory damages for a false imprisonment claim, and also for a negligence claim because it was “intimately intertwined” with the false imprisonment claim.
Submitted by: Bruce D. Celebrezze, Esq. & Jamison R. Narbaitz, Esq. of Sedgwick, Detert, Moran & Arnold LLP

REPORTED DECISIONS

New York City Housing Authority v. Rutgers Casualty Insurance Company


Bivona & Cohen, P.C., New York (Elio M. DiBerardino of
counsel), for appellant.
Lester Schwab Katz & Dwyer, LLP, New York (Steven B.
Prystowsky of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Debra A. James, J.), entered on or about September 23, 2008, which, upon reargument, adhered to its prior order, entered January 18, 2008, inter alia, granting the motion of plaintiff New York City Housing Authority (NYCHA) for partial summary judgment to the extent of declaring that defendant is obligated to defend NYCHA in an underlying personal injury action and directing defendant to reimburse NYCHA for any defense costs expended, unanimously affirmed, without costs.
The motion court properly determined that NYCHA, as an additional insured under the policy defendant issued to NYCHA's contractor, is entitled to a defense from defendant in the underlying action, where it is alleged that the plaintiff fell on construction debris that was negligently placed and allowed to remain at the exterior stairwell at the entrance of a building. Since the allegations of the underlying complaint suggest a reasonable possibility of coverage, defendant is obligated to defend NYCHA in that action (see Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, 137 [2006]). Contrary to defendant's claim, there are triable issues of fact as to whether the contractor created the alleged defective condition and whether its work was ongoing at the time of the accident (see Perez v New York City Hous. Auth., 302 AD2d 222 [2003]).
We have considered defendant's remaining arguments and find them unavailing
J. LUCARELLI & SONS, INC. v. MOUNTAIN VALLEY INDEMNITY COMPANY.


Calendar Date: April 29, 2009
Before: Cardona, P.J., Peters, Lahtinen, Kane and Garry, JJ.

Robert J. Chauvin, Clifton Park, for appellant.
Maynard, O'Connor, Smith & Catalinotto, L.L.P.,
Albany (Max W. Gershweir of Law Offices of Max W.
Gershweir, New York City, of counsel), for respondent.
MEMORANDUM AND ORDER

Garry, J.
Appeal from an order of the Supreme Court (Ferradino, J.), entered July 16, 2008 in Saratoga County, which, among other things, denied plaintiff's motion for summary judgment.
Plaintiff, an excavation contractor, commenced this action against defendant, its commercial general liability insurer, seeking a judgment declaring that defendant is obligated under its policy to defend or indemnify plaintiff in two underlying actions in which plaintiff was named as a third and fourth-party defendant. Plaintiff moved and defendant cross-moved for summary judgment. Supreme Court denied plaintiff's motion and granted defendant's cross motion. Plaintiff appeals.
The primary underlying actions were filed by homeowners against Camelot Associates Corporation, a builder of single-family homes. The homeowners alleged that Camelot breached the housing merchant warranty by constructing their homes at an insufficient elevation in relation to the seasonal high groundwater elevation at their plots, resulting in wet basements, mold and fungus, and other damages related to dampness. They sought damages for lost property values, moving expenses, and the cost of tests and inspections. Camelot commenced third-party actions against plaintiff, as well as an engineer and another contractor involved with the project, seeking contribution and indemnification based on theories of negligence, breach of contract, and breach of warranty. The engineer commenced a "fourth-party action" against plaintiff seeking indemnification and contribution for negligence. Defendant disclaimed coverage upon receiving notice of the third-party action. Defendant did not disclaim coverage of the fourth-party action, but did not undertake plaintiff's defense.
Supreme Court held that the event for which plaintiff seeks coverage was an "occurrence" within the meaning of the policy, but that the policy provided no coverage because the homeowners' claims in the underlying actions fell squarely within the policy's work-product exclusion. Defendant's policy expressly excludes damage to "[t]hat particular part of real property on which you . . . are performing operations, if the 'property damage' arises out of those operations; or . . . [t]hat particular part of any property that must be restored, repaired or replaced because 'your work' was incorrectly performed on it." The policy defines "your work," in pertinent part, as "[w]ork or operations performed by you or on your behalf," including "[w]arranties or representations made at any time with respect to the fitness, quality, durability, performance or use of 'your work.'"
The causes of action for breach of contract and breach of warranty in the third and fourth-party complaints in the underlying actions arise out of excavation work allegedly performed by plaintiff in connection with the building of the homes and seek damages for plaintiff's faulty workmanship; they therefore fall within the policy exclusion. The "'purpose of a commercial general liability policy . . . is to provide coverage for tort liability for physical damage to others and not for contractual liability of the insured for economic loss because the product . . . is not what the damaged [party] bargained for'" (Bonded Concrete, Inc. v Transcon. Ins. Co., 12 AD3d 761, 762 [2004], quoting Hartford Acc. & Indem. Co. v Reale & Sons, 228 AD2d 935, 936 [1996]).
Plaintiff asserts that defendant must nonetheless provide it with a defense because the complaints include tort causes of action for negligence in addition to the contractual claims. The duty to defend is broader than the duty to indemnify (see Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, 137 [2006]; Town of Massena v Healthcare Underwriters Mut. Ins. Co., 40 AD3d 1177, 1180 [2007]. Though a claim may ultimately prove to be meritless and the insurer may not be required to indemnify its insured, the insurer must defend "whenever the allegations of the complaint 'suggest . . . a reasonable possibility of coverage'" (Automobile Ins. Co. of Hartford v Cook, 7 NY3d at 137, quoting Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640, 648 [1993]; accord Town of Massena v Healthcare Underwriters Mut. Ins. Co., 40 AD3d at 1180). An insurer need not provide a defense, however, when it demonstrates that the complaint's allegations "'cast that pleading solely and entirely within the policy exclusions, and, further, that . . . the allegations, in toto, are subject to no other interpretation'" (Automobile Ins. Co. of Hartford v Cook, 7 NY3d at 137, quoting Allstate Ins. Co. v Mugavero, 79 NY2d 153, 159 [1992]); see State of New York v Dennin, 39 AD3d 925, 926 [2007]).
The nature of claims asserted in a complaint is to be determined "based upon the facts alleged 'and not the conclusions which the pleader draws therefrom'" or upon the characterization applied to a claim by a party (Curtis v Nutmeg Ins. Co., 204 AD2d 833, 834 [1994], lv dismissed 84 NY2d 1027 [1995], quoting County of Columbia v Continental Ins. Co., 189 AD2d 391, 394 [1993], lv denied 82 NY2d 841 [1993]). The original complaints in the underlying actions state claims only for breach of the housing merchant warranty, and neither the original complaints nor the third and fourth-party complaints state facts other than those giving rise to the contractual claims or allege that any legal duty independent of the housing warranty exists or was violated. The causes of action denominated as negligence therefore arise out of contract, not out of tort (see Lantzy v Advantage Bldrs., Inc., 60 AD3d 1254, 1255-1256 [2009]; FortAnn Cent. School Dist. v Hogan, 206 AD2d 723, 724-725 [1994]). Like the contractual claims, the negligence causes of action are based on faulty workmanship and fall "solely and entirely" within the policy's exclusion (Automobile Ins. Co. of Hartford v Cook, 7 NY3d at 137). Commercial general liability policies like the one involved here were "never intended to provide indemnification to contractors from claims that their work product was defective" (Bonded Concrete, Inc. v Transcontinental Ins. Co., 12 AD3d at 762). Defendant is not obliged to provide plaintiff with a defense.
Finally, plaintiff asserts that defendant is estopped from denying it a defense due to its failure to disclaim coverage of the fourth-party action. This argument relies, however, on Insurance Law § 3420 (d), which by its terms is limited to disclaimers "for death or bodily injury" and is therefore inapplicable. Further, the conclusion that defendant has no duty to defend plaintiff renders the argument academic. "'[R]equiring payment of a claim upon failure to timely disclaim would create coverage where it never existed'" (Bonded Concrete, Inc. v Transcontinental Ins. Co., 12 AD3d at 763, quoting Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188 [2000]).
Cardona, P.J., Peters, Lahtinen and Kane, JJ., concur.
Verbert v. Garcia

McCallion & Associates, LLP, New York, N.Y. (Kenneth F.
McCallion of counsel), for appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White
Plains, N.Y. (Nancy Quinn Koba of
counsel), for respondent William
Garcia.
Saiber, LLC, New York, N.Y. (David J. D'Aloia of counsel),
for respondent Allstate Insurance
Company.

DECISION & ORDER
In an action, inter alia, to recover damages for breach of a contract to procure insurance, the plaintiff appeals from an order of the Supreme Court, Orange County (McGuirk, J.), dated March 25, 2008, which granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.
ORDERED that the order is affirmed, with one bill of costs.
An insurance agent or broker has a common-law duty to obtain requested coverage for a client within a reasonable amount of time, or to inform the client of the inability to do so (see Murphy v Kuhn, 90 NY2d 266, 270; Loevner v Sullivan & Strauss Agency, Inc., 35 AD3d 392, 393; Tappan Wire & Cable v County of Rockland, 305 AD2d 665, 666; Reilly v Progressive Ins. Co., 288 AD2d 365, 365). Thus, the duty is defined by the nature of the client's request (see Loevner v Sullivan & Strauss Agency, Inc., 35 AD3d at 393; Kyes v Northbrook Prop. & Cas. Ins. Co., 278 AD2d 736, 737; Wied v New York Cent. Mut. Fire Ins. Co., 208 AD2d 1132, 1133). Absent a specific request for coverage not already in a client's policy or the existence of a special relationship with the client, an insurance agent or broker has no continuing duty to advise, guide, or direct a client to obtain additional coverage (see Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152, 157-158; Murphy v Kuhn, 90 NY2d at 270-271; Loevner v Sullivan & Strauss Agency, Inc., 35 AD3d 392).
Here, the defendants demonstrated their prima facie entitlement to summary judgment (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562) by presenting evidence that the plaintiff had not explicitly requested that the defendant insurance agent procure specific insurance coverage (see Hoffend & Sons, Inc. v rose-Kiernan, Inc., 7 NY3d 152; Loevner v Sullivan & Strauss Agency, Inc., 35 AD3d 392). Moreover, even if the plaintiff's request for a "quote" could be deemed an explicit request for the procurement of insurance, the defendant agent informed the plaintiff that he could not generate a quote unless the plaintiff provided him with specific information relating to the property's potential location in a flood zone, which the plaintiff did not provide. Thus, under the circumstances of this case, the defendant agent did not breach any duty to procure insurance coverage for the plaintiff (see Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d at 152; Murphy v Kuhn, 90 NY2d at 270-271; Loevner v Sullivan & Strauss Agency, Inc., 35 AD3d 392). In addition, there was no special relationship between the plaintiff and the defendant agent (see Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d at 158; Murphy v Kuhn, 90 NY2d at 271). Since the plaintiff failed to raise a triable issue of fact in opposition (see Alvarez v Prospect Hosp., 68 NY2d 320, 324), the Supreme Court properly granted the defendants' separate motions for summary judgment dismissing the complaint.
Falzone v. New York Central Mutual Fire Ins. Co.


Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), entered November 20, 2008 in a proceeding pursuant to CPLR article 75. The order granted claimant's motion and vacated an arbitration award.

BROWN & KELLY, LLP, BUFFALO (H. WARD HAMLIN, JR., OF COUNSEL), FOR RESPONDENT-APPELLANT.
GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C., BUFFALO (DAVID H. ELIBOL OF COUNSEL), FOR CLAIMANT-RESPONDENT.

It is hereby ORDERED that the order so appealed from is reversed on the law without costs, the motion is denied, and the arbitration award is confirmed.
Memorandum: Claimant was allegedly injured in an automobile accident and, following a hearing based on the denial by respondent, her insurer, of her request for no-fault benefits, the arbitrator awarded claimant the sum of $4,354.56. Claimant also sought supplemental uninsured motorist (SUM) benefits and, following a second hearing before a different arbitrator, the arbitrator denied her request for such benefits on the ground that her injuries were not caused by the accident. Claimant moved pursuant to CPLR article 75 to vacate or modify the SUM arbitration award contending, inter alia, that respondent was collaterally estopped from relitigating the issue of causation with respect to her injuries. Respondent, on the other hand, sought confirmation of the SUM arbitrator's award. We agree with respondent that Supreme Court erred in granting claimant's motion. The fact that a prior arbitration award is inconsistent with a subsequent award is not an enumerated ground in either subdivision (b) or (c) of CPLR 7511 for vacating or modifying the subsequent award (see Matter of City School Dist. of City of Tonawanda v Tonawanda Educ. Assn., 63 NY2d 846, 848). As the court properly recognized, "[i]t was within the [SUM] arbitrator's authority to determine the preclusive effect of the prior arbitration on the instant arbitration" (Matter of Progressive N. Ins. Co. v Sentry Ins. A Mut. Co., 51 AD3d 800, 801). The court erred in noting, however, that it was unable to determine whether the SUM arbitrator even considered claimant's contention with respect to collateral estoppel. Arbitrators are not required to provide reasons for their decisions (see Matter of Solow Bldg. Co. v Morgan Guar. Trust Co. of N.Y., 6 AD3d 356, 356-357, lv denied 3 NY3d 605, cert denied 543 US 1148; Matter of Guetta [Raxon Fabrics Corp.], 123 AD2d 40, 41), and thus the SUM arbitrator was not required to state that he had considered that contention.
All concur except Peradotto and Gorski, JJ., who dissent and vote to affirm in the following Memorandum: We respectfully dissent and would affirm. Although collateral estoppel "is not a basis on which [Supreme C]ourt may, under CPLR 7511, vacate an arbitration award" (Matter of Globus Coffee, LLC v SJN, Inc., 47 AD3d 713, 714; see Matter of City School Dist. of City of Tonawanda v Tonawanda Educ. Assn., 63 NY2d 846, 848), vacatur is permitted where the award
" violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power' " (Matter of Mays-Carr [State Farm Ins. Co.], 43 AD3d 1439, 1439, quoting Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336; see generally CPLR 7511 [b] [1] [iii]). In our view, the arbitrator who issued the award with respect to supplemental uninsured motorist (SUM) benefits exceeded his power by disregarding the preclusive effect of a prior arbitration award and instead issuing a different determination with respect to causation, involving the same parties and based upon the same facts (see Matter of American Honda Motor Co. v Dennis, 259 AD2d 613; Motor Veh. Acc. Indem. Corp. v Travelers Ins. Co., 246 AD2d 420, 422).
We agree with the majority that it generally is within the arbitrator's discretion to determine the preclusive effect of a prior arbitration award on the instant arbitration (see City School Dist. of City of Tonawanda, 63 NY2d at 848). In a number of the cases setting forth that general proposition, however, there are factual issues whether the prior award should be given preclusive effect, either because the parties are not identical (see e.g. id., 63 NY2d at 847-848; Board of Educ. of Patchogue-Medford Union Free School Dist. v Patchogue-Medford Congress of Teachers, 48 NY2d 812, 813), or it is not clear whether the disputed issue was resolved in the prior proceeding (see e.g. Globus Coffee, LLC, 47 AD3d at 714; Matter of Town of Newburgh v Civil Serv. Empls. Assn., 272 AD2d 405; Matter of Medina Power Co. [Small Power Producers], 241 AD2d 915). Here, there are no such factual issues. The SUM arbitrator was thus barred from relitigating the issue of causation between the identical parties, inasmuch as it was " actually contested and therefore determined by the [prior] award' " (Medina Power Co., 241 AD2d 915).
Further, we note that "strong public policy considerations favor finality in the resolution of disputes of all kinds to assure that parties will not be vexed by further litigation" (Merrill Lynch, Pierce, Fenner & Smith v Benjamin, 1 AD3d 39, 40), and that "[t]he object of arbitration is to achieve a final disposition of differences between parties in an easier, more expeditious and less expensive manner" (Matter of Maye [Bluestein], 40 NY2d 113, 117-118). Just as a court may not redetermine an issue conclusively decided in a prior arbitration proceeding between the same parties (see Clemens v Apple, 65 NY2d 746, 748-749), despite having the same discretion as an arbitrator with respect to collateral estoppel determinations (see Rembrandt Indus. v Hodges Intl., 38 NY2d 502, 504), an arbitrator is similarly precluded from redetermining an issue previously settled between the parties pursuant to an arbitration award (see American Honda Motor Co., 259 AD2d 613). To conclude otherwise would "defeat[] . . . two of arbitration's primary virtues, speed and finality" (Matter of Weinrott [Carp], 32 NY2d 190, 198), and would instead encourage parties to seek that finality by way of the court system.
Held v. Heideman


Robert K. Young, Bellmore, N.Y. (Gary J. Young of counsel), for
appellant.
Richard T. Lau, Jericho, N.Y. (Kathleen E. Fioretti of counsel),
for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Murphy, J.), dated August 20, 2008, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and denied, as academic, her cross motion for summary judgment on the issue of liability.
ORDERED that the order is reversed, on the law, with costs, the defendants' motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Supreme Court, Nassau County, for a determination of the plaintiff's cross motion on the merits.
The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motion, the defendants relied, inter alia, upon the affirmed medical report of their examining orthopedic surgeon, in which he noted the existence of a significant limitation in the range of motion of the plaintiff's lumbar spine (see Torres v Garcia, 59 AD3d 705; Bagot v Singh, 59 AD3d 368; Hurtte v Budget Roadside Care, 54 AD3d 362; Jenkins v Miled Hacking Corp., 43 AD3d 393; Bentivegna v Stein, 42 AD3d 555, 556; Zamaniyan v Vrabeck, 41 AD3d 472, 473). Under the circumstances, it is unnecessary to consider the sufficiency of the plaintiff's opposition papers (see Torres v Garcia, 59 AD3d 705; Coscia v 938 Trading Corp., 283 AD2d 538).
In light of our determination that the defendants' motion for summary judgment should have been denied, we remit the matter to the Supreme Court, Nassau County, for a determination of the plaintiff's cross motion on the merits (see e.g. Busljeta v Plandome Leasing, Inc., 57 AD3d 469).
McFadden v. Barry


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Marjorie E. Bornes of counsel), for appellants.

DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Saitta, J.), dated October 23, 2008, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Shakeelah McFadden did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, without costs or disbursements.
The defendants failed to meet their prima facie burden of showing that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In their bill of particulars, the plaintiffs clearly set forth their allegation that the injured plaintiff had sustained injuries to the lumbar region of her spine. The defendants' examining neurologist and orthopedist, however, both failed to address whether there were any limitations in the injured plaintiff's range of motion in the rotation of her lumbar spine. Under the circumstances of this case, given that omission, the Supreme Court properly concluded that the defendants failed to meet their burden of establishing, prima facie, that the injured plaintiff had not sustained a serious injury (see Staubitz v Yaser, 41 AD3d 698, 699). Inasmuch as the defendants did not meet their prima facie burden, it is unnecessary to consider the sufficiency of the plaintiffs' papers in opposition (see Delayhaye v Caledonia Limo & Car Serv., Inc., 61 AD3d 814; Ali v Rivera, 52 AD3d 445, 446).
Yun v. Barber


Sim & Park, LLP, New York, N.Y. (Sang J. Sim of counsel), for
appellants.
Andrea G. Sawyers, Melville, N.Y. (Christopher T. Vetro of
counsel), for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Agate, J.), entered April 16, 2008, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that neither of them sustained a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them by the plaintiff Su Gil Yun on the ground that he did not sustain a serious injury under the significant limitation of use and/or permanent consequential limitation of use categories of Insurance Law § 5102(d), and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with costs to the defendants payable by the plaintiff Yi Ja Yun.
The defendants met their prima facie burden of showing that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957).
In opposition to the motion, the plaintiff Su Gil Yun raised a triable issue of fact through the affidavit of his treating chiropractor, Dr. Duk Soon Park, as to whether he sustained a serious injury to, among other things, the cervical and lumbar regions of his spine, under the significant limitation of use and/or permanent consequential limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident (see Pearson v Guapisaca, 61 AD3d 833; Williams v Clark, 54 AD3d 942; Casey v Mas Transp., Inc., 48 AD3d 610; Acosta v Rubin, 2 AD3d 657). Dr. Park stated that he had conducted both contemporaneous and recent examinations of Su Gil Yun, and had reviewed his magnetic resonance imaging (hereinafter MRI) reports, which showed, inter alia, herniated discs at C5-6, C6-7, and L4-5 and bulging discs at L1-2 and L2-3. Dr. Park concluded that the injuries to the cervical and lumbar regions of Su Gil Yun's spine and observed range of motion limitations were permanent and causally related to the subject accident. Dr. Park further concluded that Su Gil Yun's injuries amounted to a permanent consequential limitation of use of the cervical and lumbar regions of his spine.
In contrast, the plaintiff Yi Ja Yun failed to raise a triable issue of fact as to whether she sustained a serious injury to her lumbar spine and left knee, under the significant limitation of use and/or permanent consequential limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident. Preliminarily, because Yi Ja Yun never alleged any cervical spine injuries in her bill of particulars, but only alleged injuries to her lumbar spine and left knee, the findings with respect to Yi Ja Yun's cervical spine in both Dr. Park's affidavit and an affirmed medical report by Dr. Sawey Harhash were not considered by this Court, and should not have been considered by the Supreme Court (see Felix v Wildred, 54 AD3d 891; Ifrach v Neiman, 306 AD2d 380). Further, while Dr. Park set forth significant range of motion limitations concerning Yi Ja Yun's lumbar spine, and Dr. Harhash set forth significant range of motion limitations concerning Yi Ja Yun's lumbar spine and left knee, which they both concluded resulted from the subject accident, their conclusions were rendered speculative in light of the fact that they failed to acknowledge that Yi Ja Yun was involved in a prior accident in 2001 (see Silla v Mohammad, 52 AD3d 681; Cornelius v Cintas Corp., 50 AD3d 1085, 1086; Wright v Rodriguez, 49 AD3d 532; Moore v Sarwar, 29 AD3d 752). Moreover, since Dr. Park failed to set forth in his affidavit any findings regarding the results of his testing on Yi Ja Yun's left knee, his conclusion that she sustained a significant limitation of use and/or permanent consequential limitation of use of her left knee as a result of the subject accident was without probative value (see Nociforo v Penna, 42 AD3d 514).
The MRI reports of Dr. Mark Frielich also failed to raise a triable issue of fact as to Yi Ja Yun, as they merely showed the existence of herniated and bulging discs, a tear of the medial meniscus of the left knee, and a partial tear of the fibular collateral ligament, which are not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration (see Carabello v Kim,AD3d, 2009 NY Slip Op 05279 [2d Dept 2009]; Magid v Lincoln Servs. Corp., 60 AD3d 1008; Washington v Mendoza, 57 AD3d 972; Cornelius v Cintas Corp., 50 AD3d at 1087; Shvartsman v Vildman, 47 AD3d 700).
The plaintiffs' remaining submissions did not constitute admissible evidence since they were unsworn (see Grasso v Angerami, 79 NY2d 813; McNeil v New York City Tr. Auth., 60 AD3d 1018; Sapienza v Ruggiero, 57 AD3d 643, 644).
Finally, both plaintiffs failed to submit competent medical evidence that the injuries they allegedly sustained in the subject accident rendered them unable to perform substantially all of their usual and customary daily activities for not less than 90 of the first 180 days subsequent to the subject accident (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Sainte-Aime v Ho, 274 AD2d 569, 570).
Vickers v. Francis


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellants.
Mark E. Weinberger, P.C., Rockville Centre, N.Y. (Marc J.
Musman of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Redha Benmebrouk and Jose A. Negron appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Ambrosio, J.), dated September 22, 2008, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them is granted.
The appellants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact.
Initially, the X ray report dated September 22, 2006, the magnetic resonance imaging (hereinafter MRI) reports of Dr. Robert Diamond, the medical records from Alliance Medical Office, the plaintiff's emergency room and hospital records, and the reports of Dr. Nunzio Saulle dated August 31, 2006, and October 19, 2006, were not in admissible form because they were unsworn (see Grasso v Angerami, 79 NY2d 813, 814-815; McNeil v New York City Tr. Auth., 60 AD3d 1018; Sapienza v Ruggiero, 57 AD3d 643, 644; Uribe-Zapata v Capallan, 54 AD3d 936, 937; Choi Ping Wong v Innocent, 54 AD3d 384, 385).
The affirmed medical reports of Dr. Saulle were insufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury to her cervical or lumbar spine as a result of the subject accident. Neither the plaintiff nor Dr. Saulle proffered competent objective medical evidence revealing the existence of a significant limitation in either region of the plaintiff's spine that was contemporaneous with the subject accident (see Leeber v Ward, 55 AD3d 563; Ferraro v Ridge Car Serv., 49 AD3d 498; D'Onofrio v Floton, Inc., 45 AD3d 525). Furthermore, in reaching his conclusion in his affirmed medical reports, Dr. Saulle clearly relied on the unsworn MRI reports of Dr. Diamond (see Magid v Lincoln Servs. Corp., 60 AD3d 1008; Sorto v Morales, 55 AD3d 718; Malave v Basikov, 45 AD3d 539; Verette v Zia, 44 AD3d 747; Furrs v Griffith, 43 AD3d 389; see also Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). Moreover, Dr. Saulle failed to address, in any of his affirmed reports, the fact that the plaintiff injured her neck and back in a subsequent accident in October 2007. His failure to address that accident and the resulting injuries rendered speculative his conclusions that the range of motion limitations he noted in the plaintiff's cervical and lumbar regions after October 2007 were caused by the subject accident (see Donadio v Doukhnych, 55 AD3d 532; Seck v Minigreen Hacking Corp., 53 AD3d 608).
Lastly, the plaintiff failed to submit competent medical evidence that the injuries she allegedly sustained in the subject accident rendered her unable to perform substantially all of her daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Sainte-Aime v Ho, 274 AD2d 569).
Frazier v. Keller


Appeal from an order of the Supreme Court, Cattaraugus County (Michael L. Nenno, J.), entered July 7, 2008 in a personal injury action. The order granted the motion of defendant for summary judgment and dismissed the amended complaint.

BROWN CHIARI LLP, LANCASTER (THERESA M. WALSH OF COUNSEL), FOR PLAINTIFF-APPELLANT.
BRIAN P. FITZGERALD, P.C., BUFFALO (BRIAN P. FITZGERALD OF COUNSEL), FOR DEFENDANT-RESPONDENT.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in part and reinstating the amended complaint, as amplified by the amended bill of particulars, with respect to the permanent consequential limitation of use of a body organ or member and significant limitation of use of a body function or system categories of serious injury within the meaning of Insurance Law § 5102 (d) and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained in a motor vehicle accident that occurred in 1999 when the vehicle she was driving was struck by a vehicle driven by defendant's decedent. Although plaintiff also commenced a separate action against two other defendants seeking damages for injuries she allegedly sustained in a motor vehicle accident that occurred in 2000, this appeal does not involve that accident. Defendant moved for summary judgment dismissing the amended complaint in the action commenced against decedent, who had not yet died, on the ground that plaintiff did not sustain a serious injury in the 1999 accident within the meaning of any of the three serious injury categories alleged by plaintiff in the amended complaint, as amplified by the amended bill of particulars (see Insurance Law § 5102 [d]). Plaintiff appeals from the order granting that motion.
Addressing first the 90/180 category, we conclude that Supreme Court properly granted the motion with respect to that category. Defendant met his initial burden of establishing his entitlement to judgment as a matter of law, and plaintiff failed to submit evidence sufficient to raise a triable issue of fact whether she was "prevented from performing substantially all of the material acts that constitute her usual and customary daily activities for at least 90 of the 180 days immediately following the [1999] accident" (Vitez v Shelton, 6 AD3d 1180, 1181; see Licari v Elliott, 57 NY2d 230, 236; Parkhill v Cleary, 305 AD2d 1088, 1089-1090).
With respect to the permanent consequential limitation of use and significant limitation of use categories, we agree with plaintiff that, although defendant established his entitlement to judgment as a matter of law with respect to those categories, plaintiff raised a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562). In opposition to the motion, plaintiff submitted medical records in which her loss of cervical range of motion was quantified and was attributed in part to the 1999 accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350). We therefore modify the order accordingly.
Industry City Management v. Atlantic Mutual Insurance Company


Weg and Myers, P.C., New York (Joshua L. Mallin of counsel),
for appellants.
Litchfield Cavo LLP, New York (Mark A. Everett of counsel),
for respondent.
Order and judgment (one paper), Supreme Court, New York County (Walter B. Tolub, J.), entered October 25, 2007, which, insofar as appealed from as limited by the briefs, denied plaintiffs' motion for summary judgment declaring that defendant is obligated to indemnify plaintiffs Industry City Management, 1-10, Industry Associates, LLC, 1-10, and Industry Associates Corp. (collectively Industry) in the amount of $250,000 for their portion of the settlement paid in the underlying personal injury  action, and granted defendant's cross motion for summary judgment declaring that it was not obligated to defend and indemnify plaintiffs in the underlying action, unanimously reversed, on the law, without costs, defendant's cross motion denied and plaintiffs' motion granted, and it is declared that defendant is obligated to indemnify Industry in the amount of $250,000.
Industry correctly argues that a March 2005 letter to defendant, written on Industry's behalf by its own insurer's claims administrator, seeking coverage for Industry as an additional insured, constituted timely notice to the insurer within the meaning of Insurance Law § 3420(a)(3), and as such required a timely disclaimer from defendant (see JT Magen v Hartford Fire Ins. Co., AD3d , 879 NY2d 100 [1st Dept. 2009]; Bovis Lend Lease LMB, Inc. v Garito Contr., Inc., 38 AD3d 260, 261 [2007]; Bovis Lend Lease LMB, Inc. v Royal Surplus Lines Ins. Co., 27 AD3d 84, 89-90 [2005]). Because defendant's disclaimer of coverage, which was based on Industry's allegedly untimely notice, was not issued until seven months later, it was untimely and therefore ineffective (see Insurance Law § 3420[d]; West 16th St. Tenants Corp. v Public Serv. Mut. Ins. Co., 290 AD2d 278 [2002], lv denied 98 NY2d 605 [2002]; Consolidated Edison Co. of N.Y. v United States Fid. & Guar. Co., 263 AD2d 380, 381 [1999]; Thomson v Power Auth. of State of N.Y., 217 AD2d 495, 497 [1995]).
Wagenstein v. Haoli


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Colin F. Morrissey of counsel), for appellants.
Annette M. Scarano, New York, N.Y. (Pollack, Pollack, Isaac
& De Cicco [Brian J. Isaac and Jillian
Rosen], of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Knipel, J.), dated October 22, 2008, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
The defendants met their prima facie burden of establishing that the plaintiff did not sustain a serious injury within the meaning of the Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff raised a triable issue of fact as to whether she sustained a permanent consequential limitation of use and/or a significant limitation of use of her cervical spine and/or right shoulder within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Williams v Clark, 54 AD3d 942; Casey v Mas Transp., Inc., 48 AD3d 610; Green v Nara Car & Limo, Inc., 42 AD3d 430; Francovig v Senekis Cab Corp., 41 AD3d 643, 644-645; Acosta v Rubin, 2 AD3d 657). Dr. Brian Mignola, one of the plaintiff's treating physicians, opined in his affirmation, based on his contemporaneous and most recent examinations of the plaintiff, as well as upon his review of the plaintiff's magnetic resonance imaging reports and films, which showed, inter alia, a bulging disc in the cervical spine, that the plaintiff's cervical and right shoulder injuries and observed range of motion limitations were permanent, significant, and causally related to the subject accident. Furthermore, Dr. Ludwig Liccairdi, the plaintiff's treating orthopedic surgeon, also established in his affirmation that during his examinations of the plaintiff in 2007 and 2008, she had significant limitations in her right shoulder and cervical spine, and he opined that her injuries and limitations were caused by the subject accident, and were permanent and significant in nature.
ALEXANDER v HART

Calendar Date: May 27, 2009
Before: Mercure, J.P., Rose, Kane, Kavanagh and Garry, JJ.


Susan R. Nudelamn, Dix Hills (John A. Piasecki of the
Law Office of John A. Piasecki, Malone, of counsel), for
appellants.
Sugarman Law Firm, L.L.P., Syracuse (Rebecca A.
Crance of counsel), for respondents.
MEMORANDUM AND ORDER

Kane, J.
Appeal from an order of the Supreme Court (Demarest, J.), entered August 11, 2008 in Franklin County, which, among other things, granted plaintiffs' motion for partial summary judgment.
Plaintiff Roger Alexander (hereinafter plaintiff), a service technician, fell while working on a rooftop heating, ventilation and air conditioning unit (hereinafter HVAC) at defendants' fitness center on the St. Regis Mohawk Reservation in Franklin County. To recover for his injuries, plaintiff and his wife commenced this action alleging, among other things, violations of Labor Law § 240 (1) and § 241 (6). Plaintiffs moved for summary judgment on the issue of liability pursuant to those two statutes. Defendants cross-moved for summary judgment dismissing the complaint. Supreme Court granted plaintiffs' motion for partial summary judgment and denied defendants' cross motion. Defendants appeal.
Plaintiff's Labor Law causes of action are not barred merely because the accident occurred on an Indian reservation. Congress has ceded the federal government's jurisdiction over Indian matters to the extent of permitting the New York State courts to exercise jurisdiction in civil actions and proceedings involving Indians just as it would any "other civil actions and proceedings, as now or hereafter defined by the laws of such State" (25 USC § 233; see Snyder v Abrams, 214 AD2d 991, 991 [1995]; Matter of Anichinapeo v Bennett & Sons, 65 AD2d 105, 106-107 [1978], lv denied 46 NY2d 709 [1979], cert denied 444 US 830 [1979]; see also Indian Law § 5)[FN1] . While the federal statute shall not be construed "to prevent such courts from recognizing and giving effect to any tribal law or custom which may be proven to the satisfaction of such courts" (25 USC § 233; see Matter of District Attorney of Suffolk County v Nelson, 68 Misc 2d 614, 618 [1972]; Bennett v Fink Constr. Co., 47 Misc 2d 283, 284-285 [1965]), the burden of proving the existence of applicable tribal law falls on the party seeking to apply that law (see People v Anderson, 137 AD2d 259, 269 [1988]). Unless applicable tribal law is proven to the court's satisfaction, "the civil laws of New York apply to St. Regis Indians except as limited" by the federal statute itself (State Tax Commn. v Barnes, 14 Misc 2d 311, 313 [1958]; see John v Hoag, 131 Misc 2d 458, 468-469 [1986] [applying New York tort law in action between two Indians]). Defendants have not proffered any St. Regis Mohawk tribal law concerning liability for injured workers. Thus, we apply the civil laws of New York to this action.
State courts do not violate an Indian nation's sovereign right to self-government by exercising jurisdiction over disputes between private civil litigants on matters that have no bearing on the internal affairs of the tribal nation's government (see Seneca v Seneca, 293 AD2d 56, 58-59 [2002]; People v Anderson, 137 AD2d at 270; Parry v Haendiges, 458 F Supp 2d 90, 96-97 [WD NY 2006]). Jurisdiction is proper in this action involving statutes aimed at protecting workers, as the statutes and this action address commercial and tort matters between individual civil litigants and do not implicate the St. Regis Mohawk nation's government or sovereign rights (see Seneca v Seneca, 293 AD2d at 58-59).
Defendants Fabian M. Hart and Fabian M. Hart, Inc. are subject to Labor Law § 240 (1) and § 241 (6) as owners of the property where the accident occurred. Defendants contend that they are not owners under these sections of the Labor Law because the reservation is owned by the United States government in trust for the St. Regis Mohawk nation. But the definition of "owners" under these Labor Law sections "has not been limited to the titleholder. The term has been held to encompass a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit" (Copertino v Ward, 100 AD2d 565, 566 [1984] [citations omitted]; see Bateman v Susquehanna Val. Cent. School Dist., 289 AD2d 852, 853 [2001]; Ogden v City of Hudson Indus. Dev. Agency, 277 AD2d 794, 795 [2000]; Mangiameli v Galante, 171 AD2d 162, 163 [1991]). Under a document entitled "Saint Regis Mohawk Indian Reservation Right to Use and Occupancy Deed," signed by Fabian Hart, the prior possessor of the land, and the tribal council chiefs, Fabian Hart was granted full rights of use and occupancy to the land upon which the fitness center was built (see Indian Law § 102). Defendants paid for these property rights, paid to have the fitness center built and contracted with plaintiff's employer for improvements to the fitness center's HVAC. Fabian M. Hart, Inc. owned the business operated on the property, receiving the benefit of the improvements to the fitness center. While defendant Gail Hart is Fabian Hart's wife and an officer of Fabian M. Hart, Inc., she has no personal ownership interest in the land or building and cannot be considered an owner of the property merely through her ownership interest in the corporate defendant. Thus, while Fabian Hart and Fabian M. Hart, Inc. qualify as owners under Labor Law § 240 (1) and § 241 (6), Gail Hart is entitled to dismissal of this action because she is not an owner of the property.
Plaintiff was engaged in an activity covered by Labor Law § 240 (1). Labor Law § 240 (1) applies to workers engaged in enumerated activities, including repairing a building or structure. Repairing is distinguished from the uncovered activity of routine maintenance, which involves "replacing components that require replacement in the course of normal wear and tear" (Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528 [2003]; see Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 53 [2004]). Here, plaintiff was at the fitness center on a service call, not for regularly scheduled maintenance (see Izrailev v Ficarra Furniture of Long Is., 70 NY2d 813, 815 [1987]; compare Pakenham v Westmere Realty, LLC, 58 AD3d 986, 987 [2009], with Esposito v New York City Indus. Dev. Agency, 1 NY3d at 528, and Kirk v Outokumpu Am. Brass, Inc., 33 AD3d 1136, 1137 [2006]; but see Barbarito v County of Tompkins, 22 AD3d 937, 939 [2005], lv denied 7 NY3d 701 [2006]). While he had replaced cracked belts and was unsure if he had replaced a motor that day, his activities were not routine maintenance (compare Smith v Shell Oil Co., 85 NY2d 1000, 1001 [1995]). The record demonstrates that defendants had not provided maintenance to the HVAC system for over three years, leaving it nonfunctional and in a serious state of disrepair (compare Barbarito v County of Tompkins, 22 AD3d at 938-939). Even after plaintiff's accident, indeed after many months and numerous additional service calls by plaintiff's employer, the system was still not functioning. On the day of his accident, plaintiff was troubleshooting and fixing problems that he encountered as part of an effort to restore the HVAC system to working order and, as such, he was not merely replacing parts that were worn out from regular use (compare Detraglia v Blue Circle Cement Co., 7 AD3d 872, 873 [2004]). Under the circumstances, considering what plaintiff was doing and the work that needed to be done to the system, his activities constituted covered repairing of a structure rather than routine maintenance (cf. Pakenham v Wetsmere Realty, LLC, 58 AD3d at 987-988). Thus, his activities were the type of work protected under Labor Law § 240 (1).
Plaintiff's work, however, was not a covered activity under Labor Law § 241 (6). As that statute is limited to protect workers involved in construction, excavation or demolition work and no such work was being performed at the time of plaintiff's accident, the Labor Law § 241 (6) cause of action must be dismissed (see Esposito v New York City Indus. Dev. Agency, 1 NY3d at 528; Nagel v D & R Realty Corp., 99 NY2d 98, 102-103 [2002]; Pakenham v Westmere Realty, LLC, 58 AD3d at 988).
Defendants contend that plaintiff's own actions, namely using an inadequate ladder and failing to use a safety harness that was in his van, were the sole proximate cause of his accident. Plaintiff's uncontroverted deposition testimony established that the safety harness could not be properly used in this situation and that no ladder on the premises would have been adequate to reach the roof hatch. A worker's contributory negligence is irrelevant unless it, and not any statutory violation, is the sole proximate cause of the accident (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]; see also Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290-292 [2003]). In these circumstances, defendant's Labor Law violations were proximate causes of plaintiff's accident (see Jock v Landmark Healthcare Facilities, LLC, 62 AD3d 1070, 1071 [2009]; Dalaba v City of Schenectady, 61 AD3d 1151, 1152 [2009]; compare Robinson v East Med. Ctr., LP, 6 NY3d 550, 554-555 [2006]).
Mercure, J.P., Rose, Kavanagh and Garry, JJ., concur.
ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as (1) granted plaintiffs' motion for partial summary judgment on the Labor Law § 241 (6) cause of action as to all defendants and on all causes of action as to defendant Gail Hart and (2) denied that part of defendants' cross motion for summary judgment seeking dismissal of the complaint against Gail Hart; plaintiffs' motion denied to said extent and cross motion granted to the extent of dismissing the complaint against Gail Hart and dismissing the Labor Law § 241 (6) cause of action against all defendants; and, as so modified, affirmed.
Footnotes

Footnote 1: While the individual defendants are apparently members of the St. Regis Mohawk nation and plaintiffs are not, both the federal and state statutes authorize jurisdiction over civil actions "between Indians or between one or more Indians and any other person or persons" (25 USC § 233; see Indian Law § 5).

State Insurance Fund v. American Hardware Mutual Insurance Company


McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York, N.Y.
(John T. Coyne of counsel; Diana M. Hendry on the brief), for
appellants.
Montfort, Healy, McGuire & Salley, LLP, Garden City, N.Y.
(Donald S. Neumann of counsel), for
respondent.

DECISION & ORDER
In an action for a judgment declaring, in effect, that the defendants are obligated to pay their proportionate share of the settlement and defense costs incurred in an underlying action entitled Walsh v Stegman, in the Supreme Court, Nassau County, under Index No. 8085/91, the defendants appeal from (1) a judgment of the Supreme Court, Nassau County (Woodard, J.), dated October 19, 2007, which, inter alia, upon an order of the same court dated January 12, 2007, granting the plaintiff's motion to resettle a prior order of the same court dated January 17, 2006, which granted the plaintiff's motion for leave to reargue that branch of its prior motion which was for summary judgment, and upon reargument, granted that branch of the motion, declared, in effect, that they are obligated to pay their proportionate share of the settlement and defense costs incurred in the underlying action, and is in favor of the plaintiff and against them in the principal sum of $650,000 plus two-thirds of the defense costs incurred in the underlying action, and (2) an order of the same court dated October 22, 2007, which determined the amount of the two-thirds of defense costs in the underlying action to be $13,363.84.
ORDERED that on the Court's own motion, the notice of appeal from the order dated October 22, 2007, is treated as an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c]); and it is further,
ORDERED that the judgment is modified, on the law, by reducing the award to the plaintiff from the principal sum of $650,000 to the principal sum of $300,000; as so modified, the judgment is affirmed, without costs or disbursements; and it is further,
ORDERED that the order dated October 22, 2007, is affirmed, without costs or disbursements.
In an underlying personal injury action, an employee of World of Hitches N Rental, Inc. (hereinafter World of Hitches), sought to recover damages for injuries he sustained when a container exploded while he was filling it with kerosene. Three of the defendants, in turn, brought a third-party action for contribution against World of Hitches. The employee's personal injury action ultimately was settled for the sum of $1,475,000, of which amount the plaintiff, State Insurance Fund (hereinafter SIF), as the workers' compensation insurer of World of Hitches, paid $750,000. SIF also agreed to waive its workers' compensation lien in the amount of $225,000.
After the settlement, SIF commenced this action seeking, in effect, a judgment declaring that the defendants are obligated to pay their proportionate share of the settlement and defense costs incurred in the underlying action. The defendants had issued World of Hitches two insurance policies which were in effect at the time of the accident - a commercial general liability policy and a garage policy. Although the defendants initially defended World of Hitches, SIF took over the defense after the defendants disclaimed coverage on the ground that both policies excluded coverage for bodily injury to an employee arising out of and in the course of employment.
Since the disclaimer was based on policy exclusions, the defendants were required to provide World of Hitches with timely notice of its disclaimer under Insurance Law § 3420(d) (see Markevics v Liberty Mut. Ins. Co., 97 NY2d 646, 648-649; Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185). The Supreme Court properly found that the defendants' disclaimer, issued more than four months after receiving notification of the third-party action, was untimely as a matter of law (see Rael Automatic Sprinkler Co., Inc. v Schaefer Agency, 52 AD3d 670; American Ref-Fuel Co. of Hempstead v Employers Ins. Co. of Wausau, 265 AD2d 49). Contrary to the defendants' contention, no showing of prejudice was required under Insurance Law § 3420(d) (see Allstate Ins. Co. v Gross, 27 NY2d 263).
Additionally, we reject the defendants' argument that even if the disclaimer was untimely, no coverage was provided under the garage policy because the employee was not injured while engaged in garage operations (see Zappone v Home Ins. Co., 55 NY2d 131, 134). The record establishes that the employee's actions were taken in furtherance of the garage business (compare Lancer Ins. Co. v Whitfield,AD3d, 2009 NY Slip Op 02975 [2d Dept 2009]; Singh v Allcity Ins. Co., 1 AD3d 501; Minerva v Merchants Mut. Ins. Co., 117 AD2d 720).

Although the defendants were obligated to defend and indemnify World of Hitches in the underlying action (see Moore v Ewing, 9 AD3d 484), and thus must pay their proportionate share of the settlement (see Hawthorne v. South Bronx Community Corp., 78 NY2d 433) and defense costs incurred in the underlying action, their contribution may not exceed the limits of the policies. Here, both policy limits were $300,000 per accident. Moreover, the garage policy provided that all of the defendants' policies were mutually exclusive in that if more than one policy applied to the same accident, the maximum limit of liability under all the policies would not exceed the highest applicable limit under one policy. Thus, the maximum amount the defendants were required to contribute to the settlement was $300,000, and the judgment must be modified accordingly.

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